Judge: Kerry Bensinger, Case: 19STCV33840, Date: 2025-03-20 Tentative Ruling

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Case Number: 19STCV33840    Hearing Date: March 20, 2025    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:     March 20, 2025                                  TRIAL DATE:  N/A

CASE:                         Shaun White v. Gerard Cosmetics, Inc., et al.

CASE NO.:                 19STCV33840

RESPONDENT SHAUN WHITE’S MOTION TO VACATE ARBITRATION AWARD IN FAVOR OF GERARD

CROSS-PETITION TO CONFIRM ARBITRATION AWARD

I.          BACKGROUND

            On September 23, 2019, plaintiff Shaun White (“White”) filed a Complaint against defendants Gerard Cosmetics, Inc. (“Gerard Cosmetics”) and Jennifer Gerard (“Gerard”) (collectively “Gerard Parties”), for wrongful termination.  

On September 20, 2022, the parties agreed to settle the matter by agreement for the sum of $280,938.43.  On January 24, 2023, the action was dismissed pursuant to a Settlement Agreement and Stipulation (the “Agreement”) with the court retaining jurisdiction pursuant to Code of Civil Procedure section 664.6. 

The Agreement contains provisions regarding confidentiality, non-disclosure, non-disparagement, and non-contact, and specifies penalties for violations of the Agreement by White.  Any purported violation was to be resolved by arbitration.  Pursuant to those provisions, the Gerard Parties submitted a demand for arbitration on May 8, 2023.

On October 24, 2024, the Honorable Michael Latin, Ret. (the “Arbitrator”) issued an order finding White had failed to pay several arbitration fees and was therefore in default.  The Order of Default also indicated the arbitration hearing would proceed as a default prove-up hearing.  White requested the default be vacated.  On November 1, 2024, the Arbitrator issued an order denying the request but authorizing White’s limited participation in the proceedings upon receipt of a late payment.  White made the payment.  As a result, White was permitted to be present during the default prove-up, to cross-examine any witnesses who testified at the hearing, and to submit briefing.  White was not permitted to testify or present any affirmative evidence at the hearing.

On November 11, 2024, the Arbitrator held a conference with counsel but did not hold the prove-up hearing.  Later that day, the Arbitrator issued the Arbitration Award in favor of the Gerard Parties.  According to the Arbitration Award, White filed a late brief which the Arbitrator nonetheless considered in rendering the award.  The Gerard Parties were awarded the principal sum of $45,000 ($15,000 in liquidated damages), as well as $15,000 in arbitration fees on deposit, and $30,400.80 in attorney’s fees/costs.

            On January 29, 2025, White filed in pro per a Petition to Vacate Contractual Arbitration Award as well as a Motion to Vacate or Alter Arbitration Award (hereinafter referred to as “Petition to Vacate”). 

            On February 3, 2025, Gerard Parties filed a Petition to Confirm Arbitration Award (“Petition to Confirm”).

            On March 6, 2025, Gerard Parties filed Objections and Opposition to the Petition to Vacate (“Objections & Opposition”).[1]

            White has not filed an opposition to the Petition to Confirm nor filed a reply in support of his Petition to Vacate.  Nevertheless, despite his earlier filing, the court construes the Petition to Vacate as an opposition to the Petition to Confirm.

            Because the parties’ petitions concern the arbitration award issued on November 11, 2024, the court addresses the cross-petitions together. 

II.        LEGAL STANDARD

Once arbitration is concluded, “any arbitrator’s award is enforceable only when confirmed as a judgment of the superior court.”¿ (O’Hare v. Municipal Resource Consultants (2003) 107¿Cal.App.4th 267, 278 (O’Hare).)¿ Any of the parties may file a petition with the court, which must then “confirm the award, correct and confirm it, vacate it, or dismiss the petition.”¿ (Code Civ. Proc.,¿§§¿1285, 1286; EHM Productions, Inc. v. Starline Tours of Hollywood,¿Inc. (2018) 21 Cal.App.5th 1058, 1063 (EHM Productions).)¿ “It is well settled that the scope of judicial review of arbitration awards is extremely narrow.”  (California Faculty Assn. v. Superior Court¿(1998) 63 Cal.App.4th 935, 943.)¿ “Neither the trial court, nor the appellate court, may ‘review the merits of the dispute, the sufficiency of the evidence, or the arbitrator’s reasoning, nor may we correct or review an award because of an arbitrator’s legal or factual error, even if it appears on the award’s face.  Instead, we restrict our review to whether the award should be vacated under the grounds listed in section 1286.2.” ¿ (EHM Productions, supra, at pp. 1063-64.)¿

Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following: 

(1) The award was procured by corruption, fraud or other undue means. 
(2) There was corruption in any of the arbitrators. 
(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. 
(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. 
(5) The rights of the parties were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. 
(6) An arbitrator making the award  . . . (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. . . .” 

(Code Civ. Proc., § 1286.2, subd. (a).) 

Only where both (1) the arbitrator abused his or her discretion and (2) there was resulting prejudice, can a trial court properly vacate an arbitration award.  (SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1198.) 

III.      DISCUSSION

A.    Timeliness

A petition to vacate an arbitration award must be filed and served no later than 100 days after the date of the service of a signed copy of the award on Petitioner.  (Code Civ. Proc., §  1288.)  “The filing and service deadline for a petition to vacate is jurisdictional; noncompliance deprives a court of the power to vacate an award…”  (Santa Monica College Faculty Assn. v. Santa Monica Community College District (2015) 243 Cal.App.4th 538, 544-45.)  

Defendants do not dispute the timeliness of White’s Petition to Vacate.  Accordingly, the court finds Plaintiff’s Petition to Vacate is timely.

B.     Petition to Vacate

White identifies two grounds[2] to vacate the arbitration award.  The court addresses each in turn.

                                i.            Fraud (CCP § 1286.2(a)(1))

White contends the Gerard Parties used unverified evidence, tampered with witnesses, and used retaliatory tactics, such as recruiting White’s ex-girlfriend to file a frivolous restraining order and fabricate nondisclosure breaches, to procure the Arbitration Award.  These are serious charges.  However, White does not support any of these charges with admissible evidence.  Indeed, as the Gerard Parties point out in their Objection & Opposition, none of White’s exhibits are authenticated.  (See Pet. to Vacate, Exs. 1-33.)  In short, the information and allegations lack foundation.  Moreover, White admits his default was entered in the arbitration proceedings for multiple failures to pay timely his arbitration fees.  Having defaulted, White fails to show a basis for vacating the award due to fraud.

                              ii.            Arbitrator Misconduct (CCP § 1286.2 (a)(4))

White next argues the Arbitrator did not honor his promise to allow White’s attorney to cross-examine witnesses at the default prove-up hearing and issued the Arbitration Award without the promised procedural safeguards.  White further argues the Arbitrator’s late arrival to the hearing reflects a lack of impartiality and due process.   

White’s arguments fall short.  Although it is undisputed the Arbitrator arrived late to the hearing, and more, White’s counsel did not cross-examine any witnesses, White fails to show whether the Gerard Parties called any witnesses in support of the default prove-up in the first place.  Indeed, as White admits, no hearing was held.  The arbitrator proceeded by way of a default.  While White may have been permitted “to cross-examine any witnesses who testify at the hearing, and to submit briefing of his own on the issues, ” (Pet. to Confirm, Ex.  K.), no hearing was held, no witnesses testified. 

Further, it is undisputed the Arbitrator conferred with counsel on November 11, 2024 and that White submitted a late brief which the Arbitrator nonetheless considered in issuing the Arbitration Award.  (See Pet. to Confirm, Ex. J.)  White’s participation in the arbitration was consistent with the Arbitrator’s order.  (Pet. to Confirm, Ex.  K.)  Under these facts, White does not show the Arbitrator acted improperly or violated his due process rights.  The Arbitration Award cannot be vacated on these grounds.

C.     Cross-Petition to Confirm Arbitration Award

The Gerard Parties seek an order confirming the Arbitration Award.  An arbitrator’s award is enforceable only after being confirmed by a court of law. (O’Hare, supra, 107 Cal.App.4th at p. 278.)¿ “An award that has not been confirmed or vacated has the same force and effect as a contract in writing between the parties to the arbitration.”¿ (Code Civ. Proc., § 1287.6.)¿

“Any party to an arbitration award in which an award has been made may petition the court to confirm, correct or vacate the award.” (Code Civ. Proc. § 1285.) “A petition under this chapter shall: (1) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement. (b) Set forth the names of the arbitrators. (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.” (Code Civ. Proc. § 1285.4.) “A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award.” (Code Civ. Proc. § 1285.2.)

The procedural requirements of Code of Civil Procedure section 1285.4 have been satisfied.  In moving to confirm the Final Award, the Gerard Parties included a copy of the agreement to arbitrate (Pet. to Confirm, Ex. B) and copy of the Arbitration Award issued by Arbitrator Latin (Pet. to Confirm, Ex. J).  Further, the court has considered White’s challenges to the Arbitration Award which are set forth in Plaintiff’s Petition to Vacate.

IV.        CONCLUSION

            Plaintiff Shaun White’s Petition to Vacate Contractual Arbitration Award is DENIED. 

            Defendants Gerard Cosmetics and Jennifer Gerard’s Cross-Petition to Confirm Arbitration Award is GRANTED.  Defendants are directed to file a proposed judgment consistent with this decision within 10 days.[3] 

Defendants to give notice. 

DATED: March 19, 2025